APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Macfadyen Lord Penrose |
[2006]
HCJAC 57
Appeal
No: XC1282/03
OPINION OF THE COURTdelivered by LORD MACFADYEN in NOTE OF APPEAL by MOHAMMAD ARSHAD Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Shead; Drummond Miller, W.S.
Alt: Murphy, Q.C., A.D.; Crown Agent
"(2) on 27 and 28 December 2001 at 17 Cleghorn Street, Dundee and at Moto Service Station, Kinross and the Swallow Hotel, Invergowrie, Dundee for the purpose of inciting a police officer known as Peter, c/o Tayside Police, Dundee, to murder Abdullah Yasin, your son-in-law, c/o Tayside Police, Dundee, you did provide him with photographs of said Abdullah Yasin and advise him that said Abdullah Yasin was believed to reside at 3 Highgate Close, Walsall and could be found there or at another address or addresses unknown in Dundee, Walsall or elsewhere in the United Kingdom, and did indicate to said police officer known as Peter that you wished members of the family of said Abdullah Yasin and in particular Fasihuddin Ahmed and Ageed Fatima Ahmed, 3 Highgate Close, Walsall, assaulted and injured and you wished said Abdullah Yasin to be murdered, request him to commit said assaults and murder on your behalf, agree to pay him £1000 to arrange for said assaults and murder to take place and pay him £200 as a deposit for same and you did incite said police officer known as Peter to assault said Fasihuddin Ahmed and Ageed Fatima Ahmed and to murder said Abdullah Yasin."
[2] On
[3] The appellant presented a note of appeal
against conviction and sentence. On
The ground of appeal
[4] The ground of appeal against sentence was in the following terms:
"The sentence imposed was excessive. In selecting the sentence it is submitted that the trial judge failed to give adequate weight to:
(a) the appellant's previous good character and his personal circumstances;
(b) the attitude of both [sic] complainers;
(c) the appellant's state of health at the time of the commission of the offences."
The sentencing judge's original report
[5] In her original report to this court on the appeal, at pages 14 to 17, the sentencing judge dealt with the matter of sentence in the following terms:
"In a plea in mitigation, counsel for the appellant, Mr
Simpson, drew my attention to the fact that the appellant had previously been
of good character. He had worked in his
father's business since the age of 16.
He had founded the Tayside Racial Equality committee. He had previously been a Justice of the
Peace. He was well respected in the
Muslim community in
[6] The sentencing judge went on to explain
that she had called for a social enquiry report and also a psychiatric
report. She had called for the latter
report because she was aware that the trial had been postponed on a number of
occasions because psychiatrists had expressed the view that the appellant was,
on account of his mental state, not capable of giving instructions. Dr K. W. Richard, a consultant forensic
psychiatrist at the
"She concluded that, although the appellant was exhibiting mild depressive symptomatology, psychiatry had little to offer in terms of managing the risk of reoffending. She did not recommend that he receive any psychiatric treatment or that a hospital order be imposed. She noted that the nursing staff at the prison did not believe that he merited referral to the visiting consultant psychiatrists. Further, she expressed the view that there was no evidence to suggest that the appellant was insane at the time he committed these offences."
[7] The sentencing judge also recorded that
she was provided with letters of support for the appellant from his daughter,
Insha, whose husband's murder he had been convicted of inciting. She comments that, sadly, Insha appears to
blame herself for what has happened to her father. She also indicated that she received
petitions in support of the appellant bearing the signatures of many members of
the Muslim community in
[8] The sentencing judge explained her decision in the following terms:
"In sentencing the appellant, whilst bearing in mind the positive factors that there were in his case, namely that he was a first offender who had, previously, been of good character and had the support of many friends, acquaintances and family, I took the view that he had committed a particularly serious offence. It involved, on his part, complete denial of the principle which is fundamental to our law that human life is entitled to protection and complete lack of regard for the sanctity of human life. Far from doing him any wrong, his son-in-law appears to have acted respectfully towards the appellant's daughter and had sought to persuade the appellant to accept his relationship with her, in a respectful way. The appellant's reaction of determining upon having him killed seemed to me to call for a significant custodial sentence. Further, his actions involved utter disregard for the welfare of his son-in-law's family and a desire that was wholly unjustified though, to his mind, expedient, to harm them. I did not see that any desire on the appellant's part to order the affairs of his family in such a way as, according to his perception, would better accord with the requirements of his culture, as giving rise to any justification for any of his actions."
Having considered a number of English cases, the sentencing judge concluded by sentencing the appellant to seven years imprisonment.
The first hearing
[9] When the appeal against sentence first
called before us on
[10] We were not satisfied that we had a sufficiently clear understanding of how far the account of events on which Dr Zealley had relied in forming his opinion of the appellant's mental state at the time of the crimes accorded with the evidence led in the course of the trial. We accordingly continued the hearing of the appeal, and requested the sentencing judge to report to us on how far the factual assumptions on which Dr Zealley's opinions were based accorded with the evidence at the trial.
The sentencing judge's second report
[11] In her report in response to our
interlocutor of
[12] At pages 4 to 7 of her second report the sentencing judge discusses the extent to which the factual basis on which Dr Zealley proceeded in his report differs from that elicited in evidence at the trial. It is unnecessary for us to record that discussion in detail. While there were respects in which the account given to Dr Zealley accorded with what was said in evidence at the trial, there were also a number of important discrepancies, which were not made the subject of cross-examination of the witnesses who gave evidence at the trial. Moreover, a number of points which formed part of the account given to Dr Zealley and were relied on by him were not mentioned in evidence at the trial. The appellant did not himself give evidence at his trial.
The second hearing
[13] The second hearing took place on
[14] In further support of the submission that
weight should be accorded to the appellant's previous good character and to the
fact that the crimes were out of character, Mr Shed produced for our
consideration a further petition, which appears under the letterhead of the
Tayside Islamic and Cultural Education Society.
It is dated
"We the undersigned members of the Muslim community know Mohammed Arshad for many years. And have the highest regards for him. Therefore ask the court to show mercy to him. Mohammed Arshad is a very highly respected and honoured member of the communities. Therefore his attendance is highly required we the above society request his sentence to be re-considered as community work."
Discussion
[15] As the sentencing judge's second report
makes clear, no reliance was placed on the report of
[16] There is a clear difference of opinion between Dr Zealley and Dr Richard. Dr Zealley, in the first paragraph of his Opinion at page 7 of his report, expresses himself as fully satisfied that as at that date the appellant was suffering from a major depressive order (DSM-IV (diagnostic code 296·2x) or ICD-10 (diagnostic code F32·2)). He goes on in the next paragraph to express the view that it is highly probable that the beginnings of the appellant's clinical depression go back to the death of his father in 1997. He then discusses the appellant's religious and cultural beliefs and the impact on him of his daughter's marriage. He makes a number of points: (i) that the appellant appears to have been "conspicuous in his attempts to be an exemplary Muslim citizen, husband and father"; (ii) that he "nurtured his social status carefully"; (iii) that "against the background of meticulous religious adherence", news of his second daughter's link - then marriage - to a non-Pakistani (lower cast Indian) young man served to "demolish his and his family's social and cultural standing"; (iv) that he perceived the marriage prospects of his other children, especially his daughters, to be "gravely and irrevocably compromised"; and (v) that "the impact of the news of [the] marriage, and of his appalled perception of all it implied for himself and for his family, was almost certainly enough to cause a major stepwise deterioration in an already extant major depressive illness". Dr Zealley then concludes as follows:
"It is my opinion that by late 2001, Mohammed Arshad was characterised by a seriously significant abnormality of mind - an amalgam of shattered religious and cultural beliefs and aspirations and of the typically distorted thinking and judgment of a person with a major depressive illness."
[17] In contrast, Dr Richards expressed the following views in the section of her report headed "Opinion and Recommendations" at page 8:
|
"1. |
He [the appellant] currently demonstrates psychiatric symptomatology, specifically mild depressive symptomatology ... |
|
2. |
The index offences took place in September 2001. He was not seen by a psychiatrist and it is therefore difficult to comment on his mental state at the time of the alleged offences. His family give a history of a gradual deterioration in his mental state for the four years prior to the offences. This is not confirmed by the General Practitioner's records ... There is no evidence of any concern about Mr Arshad's mental state by any of the General Practitioners prior to 2003. |
|
5. |
There is no evidence to suggest that the accused was insane at [the time of] the alleged offences. |
|
6. |
There is no indication that at the time of the alleged offences the accused was suffering from an abnormality of mood which substantially impaired the ability of the accused to determine or to control his acts." |
[18] It appears to us that the decision to proceed to mitigation on the basis of Dr Richard's post-conviction report without reference to Dr Zeally's report must have been made deliberately. Nevertheless, we consider it appropriate to consider whether Dr Zeally's views should now be given weight as submitted by Mr Shead. Having considered carefully the competing views of the psychiatrists, and having taken into account what the sentencing judge has told us about the extent to which the factual basis for Dr Zealley's opinion was not borne out in evidence at the trial, we have formed the view that Dr Richard's opinion is to be preferred. We do not think that material weight can be given to the views expressed by members of the appellant's family after the event. None of the material before us offers any precise explanation of how a depressive disorder, of whatever degree, might have led the appellant to take the course of action which he did, if it was not one which he would otherwise have been inclined to take. In considering the appeal against sentence, therefore, we proceed on the basis that there is no sufficient evidential basis for a conclusion that the appellant committed his crimes because he was suffering from depression, or that his culpability can be regarded as reduced on that account.
[19] We note the submission that the crimes of which the appellant has been committed were out of character. We of course accept all that was said, uncontradicted, about the appellant's previous good character. We do not consider, however, that in relation to a crime of the sort libelled in charge 2, previous good character is a factor which has much mitigatory effect. Nor is the fact that there is no risk of repetition of much significance. The nature of the appellant's crime is such that no occasion for such conduct had ever previously arisen, and no occasion for repetition is ever likely to occur. We do not think that the sentence selected by the sentencing judge is likely to have been at all intended to reflect a risk of similar re-offending. What is of the greatest significance is that, when circumstances arose in which the appellant felt that his religious and cultural attitudes had been offended, he was prepared on that account to commit the extremely grave offence of incitement to murder.
[20] We would add that we do not consider it
appropriate in the circumstances to accord material weight to the views
expressed in the petition which was laid before us. We do not doubt that, before the crimes were
committed, the appellant was a highly respected and honoured member of the
Muslim community in
[21] Having considered all the submissions and all the material laid before us in connection with the appeal against sentence, we find nothing in them that persuades us that the sentencing judge erred in selecting a period of seven years imprisonment as the appropriate punishment for the appellant's crimes. The appeal against sentence is therefore refused.